(dissenting). — I can not agree to the conclusion that defendant is shown by the record to have been maintaining a liquor nuisance, and I think a wrong construction has been put upon the provisions of our Code, particularly upon section 2382, which is set forth in the opinion. That we may have the exact question before us, I here quote the material parts of the section upon which the majority rely: “No one by himself ... or employee . . . shall for himself or any person else, directly or indirectly or upon any pretense or by any device, manufacture, sell, exchange, barter, dispense, give in consideration of the purchase of any property or of any services or in the evasion of the statute, or keep for sale any intoxicating liquors, ... or own, keep or be in any way concerned ... in owning or keeping any intoxicating liquor with intent to violate any provision of this chapter. ...”
Section 2384 provides that whoever shall establish, continue, or use any building for any of the purposes prohibited is guilty of keeping a nuisance, etc. In order, then, that one may be- found guilty of keeping a nuisance it must appear that he is using the building for some of the purposes prohibited in section 2382. The majority admit, as I understand it, that the defendant did not, by himself, agent, or employee manufacture, sell, exchange, barter, or give in consideration of the purchase of any property or of any services, any intoxicating liquor; but *348it is asserted that ho did, by himself and through agents or employees, dispense liquor to others — that is, that he did furnish them with liquor in his restaurant, and the conclusion is reached that such furnishing is in violation of law and made the place where the liquor was given a nuisance. This being a criminal statute, I do not believe it should be given so broad an interpretation. The word “dispense” is susceptible of many constructions; but I think it takes its meaning and gets its color from the other words with which it is associated. These words are “manufacture, sell, exchange, barter, give in consideration of the purchase of any property or of any services intoxicating liquors.” It has never heretofore been held, I think, to cover a gift of such liquor; nor has it been thought to be a violation of law for one to take another’s money and buy liquor from a third person, he, the recipient of the money, having no interest of any kind in the liquors to be bought. It' is a gift based upon some consideration which the statute prohibits, and it is no offense for one to furnish another liquor in his own home, and I do not understand that the ■ statutes of our state prohibit one from acting as agent for the buyer; he, the agent, having no sort of interest in the liquors themselves.
Speaking to this point, and construing a statute even broader than our own, the Supreme Court of Alabama said,’ in Amos v. State, 73 Ala. 501: “The effective words are ‘sell, give away, or otherwise dispose of’ — all of which, in a general sense, found in this connection, signify some act 'by which one person parts with, to another, possession or ownership of property. . A sale ex vi termini imports the transfer of personal property upon a valuable consideration, and a gift imports a like transfer gratuitously, or upon a merely good consideration. The more general words ‘or otherwise dispose of,’ following the more specific or particular words ‘sell or give away,’ upon a settled rule of statutory construction, a large leg*349islative intention not being clearly expressed, must be construed as extending only to a disposition ejusdem generis with a sale or a gift. They are not to be extended to any and every act which may be said to be a disposition. . . . It would be a departure from the rule, not necessary to give effect to the legislative intent, and not within it, to give the general words ‘or otherwise dispose of’ a meaning so loose and expansive as to include within them any act not akin to a sale or gift, not intended as, and not having in it any of the properties of, a parting with property by one person to another.”
Again, in Maples v. State, 130 Ala. 121 (30 South. 428), the same court said: “The evidence upon the trial was that one Allison asked defendant if he thought he could get him some whisky, and, upon receiving an affirmative reply, gave defendant fifty cents, who went away, returning in a short time with one pint of whisky, which he delivered to Allison without reward for his services. On this proof the court gave the affirmative charge with hypothesis for the state. In this there was error. The evidence failed to disclose a sale.”
Again, in Maxwell v. State, 140 Ala. 131 (37 South. 266), the same court said: “Upon a consideration of all the evidence, our conclusion is that it simply established the fact that the defendant, in getting and delivering the whisky, was not acting for his father at all, but for Harmon. The ease, therefore, belongs to that class of eases where the defendant acted only as the agent or friend of the purchaser in procuring the whisky. In all such cases it has been uniformly held by this court that a conviction can not be had. Bonds v. State, 130 Ala. 117 (30 South. 427).”
It clearly appears in the case now before us that the defendant had no interest whatever in the liquor; that he made no sales; that he simply acted as agent for the buyer in the purchase of the goods and had no commission *350or other return from the owner of the property. That he may have received some benefit from his principal, the purchaser of the liquor, does not, as it occurs to me, make him guilty. I do not believe that one is guilty of a violation of our statute who acts for another in the purchase of liquor from some third party, no matter whether he does it as a matter of friendship or upon compensation paid. To be amenable to the law, it seems that he should either own the liquor, act as agent for the owner, or have profit of some sort from the sale emanating from the man who owns the property. It is not enough to shew that he furnished it to another as a gift, or that at the request of another he purchased it from some stranger for such other. It is familiar doctrine that where words are associated as they are in the section now before us for consideration, they should be construed as in pari materia. Without going to our own cases, I think we have heretofore held that the statute does not cover the mere furnishing of liquor to another; that it does not cover gifts; and that it does not apply to one who acts for another in the purchase of liquor from a stranger, the consideration, if there be any, passing from the purchaser. Ordinarily, one would not perhaps be justified in dissenting from the construction placed upon such a statute; but it seems to me the decision is so far reaching that we may well pause before announcing so rigid a rule as the 'majority have promulgated, and I feel sure that the profession in general have never put such an interpretation upon the statute, and that the announcement will cause considerable surprise and confusion. If it once be admitted that one may act as agent for a purchaser in buying liquor, he having no interest whatever and receiving no benefit from the owner of the goods, it can not be that his act is unlawful because he delivers it to the purchaser at any specific place.
Again, if the proprietor of a restaurant may himself *351take one of his customers’ money, go out, and purchase liquor for him from someone authorized to sell and deliver it to the buyer in his place of business, he can instruct his clerks to do the same thing without violating the law. Moreover, if the majority are right in their construction of this statute, one is guilty of maintaining a nuisance who allows his clerks to go out and purchase liquors from a stranger at the request of another, which other furnishes the money for the goods, although he, the principal, has no interest whatever in the transaction. I do not believe this was the thought of the Legislature, and, while I do not believe in opening the way for a violation of our liquor laws, I still think that there is nothing in them which prevents gifts of liquor by one to another, nothing which prohibits one from acting as agent for a purchaser who has no interest in the goods himself, and that the term “dispense” does not mean the mere furnishing of liquor. It seems to me that the word must be construed with reference to the others with which it is conjoined, and that the dispenser must have some interest in the goods or receive some benefit from the man who owns them before he can be said to have violated the law. Under the construction of the majority, it looks to me as if all gifts -of liquor are now held to be unlawful, and that it is impossible for one to take another’s money and as his agent go out and purchase liquors for him, particularly if delivery be made in some building. For the purpose of construing the statute, it does not seem to me to be material whether the delivery be made upon the street or in a building. The real question is, as I view it: May one act as agent for the purchaser of liquor without being subject to the penalties prescribed by the statute? Nor do I think it material that the agent of the purchaser receives some benefit from the purchaser, so long as this is not received from the owner of' the goods. In other words, one may receive compensation from the purchaser for his services *352for him without being guilty of an offense. If the majority are i correct, and the proprietor of a hotel allows his porter to take money from one of his guests and go out and huy liquor and deliver it to the guest in the hotel, he, the hotel keeper, is guilty of maintaining a nuisance, and this I take it whether a tip be given to the porter or not. I do not think it makes any difference in such a case whether the porter receives a fee from the guest or does it as a mere gratuity. In either event, neither he nor his employer is guilty of dispensing liquor. • This illustration points out the difficutly and emphasizes the difference in the views entertained by the majority and minority of the court. I think the decree should be affirmed.
Wednesday, October 25, 1911.SUPPLEMENTAL OPINION.
McClain, J.3' pensing me-In a petition for rehearing counsel for defendants quote from standard authorities various definitions of the verb “dispense,” insisting that such definitions do not sustain the conclusion of this court holding that Frank’s method of doing business constituted a dispensing of liquors within the meaning of the statute. Some of the definitions relied upon are as follows: “To deal out in portions; to distribute; to give.” Webster’s New International Dictionary. “To deal out; to apportion; to distribute. To dispense is to deal out generally or indiscriminately; to distribute, to deal out to, or divide among individuals.” Worcester’s Dictionary. “To deal or divide out; give forth diffusively, or in some general way; practice distribution of.” Century Dictionary. Under a charge of “selling or dispensing” intoxicating liquors in violation of an ordinance, it was held in Johnson v. Chattanooga, 97 *353Tenn. 247 (36 S. W. 1092), that, the giving away .of liquors constituted a dispensing.
Now, it appears from the- agreed statement of facts that Frank in conducting his restaurant business “serves to his patrons at the above-described premises intoxicating liquors ... to whomsoever orders and pays for the same,” the ordering being accomplished by communicating through the waiters to Frank the desire to have intoxicating liquors served, the payment being made by giving the money necessary to the waiter who fills the order in accordance with Frank’s directions. We think it is plain that within the definitions above quoted Frank distributes liquor generally and indiscriminately to all his patrons as such liquors may be desired. He gives forth liquors diffusively or in some general way. He practices the distribution of liquors. In short, he dispenses liquors to all that class of persons constituting his customers who desire such liquors. We think it 'is true, therefore, be-. yond question, that Frank in the conduct of his business violates the statutory prohibition against selling and- dispensing intoxicating liquors.
We are not discussing in this case the liability of a waiter who fills a paid order for a customer on his own responsibility. We are discussing the case of > one who makes it a part of his 'business to furnish liquors to all his patrons who desire them. This distinction so clearly differentiates the case from that of State v. Smith, 135 Iowa, 523, the sole case now relied on for defendants, that further discussion of that case as the only authority in this state directly in point would seem to be unnecessary. In that case but one transaction was involved, and there was no question of a course of business and no state of facts which could by any stretch of the imagination be construed as showing a dispensing of liquors within the language of the statute.
We adhere to the reasoning and conclusion announced *354in the original opinion, and the petition for rehearing is overruled.